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Consent Decree
I. Introduction
1. This Consent Decree is entered into by the Enforcement
Bureau, Federal Communications Commission ("Bureau") and
FirstEnergy Corp. ("FirstEnergy"), The Cleveland Electric
Illuminating Company (``Cleveland Electric''), Ohio
Edison Company (``Ohio Edison''), Pennsylvania Power
Company (``Pennsylvania Power''), The Toledo Edison
Company (``Toledo Edison''), MB Operating Company, Inc.
(``MB''), Colonial Mechanical Corporation (``Colonial''),
Spectrum Control Systems, Inc. (``Spectrum''),
(collectively, ``Licensees'').
II. Background
2. There are six separate transactions that are the
subject of this Consent Decree. The first transaction
involved the merger of Ohio Edison Company and its
subsidiary Pennsylvania Power Company with Centerior
Corporation, the former holding company for Cleveland
Electric and Toledo Edison. FirstEnergy was formed as a
result of that merger. That transaction closed on
November 8, 1997. Three transactions involved
FirstEnergy's acquisition of control of Spectrum, MB and
Colonial. The fifth transaction involved the transfer of
MB's assets to Great Lakes Energy Partners, LLC (``Great
Lakes''), a joint venture with Ranger Resources
Corporation. The sixth transaction involved the merger
of Morrison Mechanical and Building Services, a
corporation controlled by Colonial, into Colonial. All
of the Licensees, except for FirstEnergy, hold licenses
issued by the Federal Communications Commission for
microwave, private land mobile, and/or maritime stations.
3. The Licensees did not file applications for Commission
consent to the transfers of control of the subject
stations that took place when these transactions were
effectuated. FirstEnergy represents that ``[n]o filing
was made with the Commission prior to the consummation of
the merger.'' It also represented on June 10, 1999 that
``FirstEnergy personnel only recently learned of the
necessity for Commission approval of such a transfer of
control. The omission of filings seeking Commission
approval of the transfer of control was thus based simply
on unawareness of the scope of the statutory provision
and was not made with any intent to avoid the
requirements of the statute or the Commission's rules.''
4. In the spring of 1999, after reading an article in a
trade publication, Licensees became aware of the
requirement to obtain prior Commission approval before
undertaking a transfer of control. The Licensees met
with the Commission's Wireless Telecommunications Bureau
in early June 1999 to bring the matter to the
Commission's attention. On June 10, 1999, FirstEnergy
filed requests for special temporary authorization to
operate the stations that were subject to the first four
transactions described above. The Licensees then filed
applications for Commission approval of the transfers of
control with respect to those transactions. Those
applications were granted in August 1999.
5. In July 2000, while completing a due diligence review
of its licenses, FirstEnergy discovered potential
problems with respect to the transfer of MB's assets to
Great Lakes and the merger of Morrison Mechanical into
Colonial. FirstEnergy brought those problems to the
Commission's attention, and is in the process of
obtaining the necessary authorizations from the
Commission.
III. Definitions
6. For the purposes of this Consent Decree, the following
definitions shall apply:
(a) "Commission" means the Federal Communications
Commission.
(b) "Bureau" means the Commission's Enforcement
Bureau.
(c) "Licensees" means all of non-government
parties to this consent decree and all of
their subsidiaries and affiliates.
(d) ``FirstEnergy transaction'' means the merger
of Ohio Edison Company, Pennsylvania Power
Company, and Centerior Corporation (partially
a substantial transaction, partially a pro
forma transaction) on November 8, 1997.
(e) ``Spectrum transaction'' means the
substantial transaction under which
FirstEnergy acquired control of Spectrum.
(f) ``Colonial transaction'' means the
substantial transaction under which
FirstEnergy acquired control of Colonial.
(g) ``MB transaction'' means the substantial
transaction under which FirstEnergy acquired
control of MB.
(h) ``Morrison transaction'' means the pro forma
transaction in 2000 under which Morrison
Mechanical and Building Services, a
corporation controlled by Colonial, was
merged into Colonial.
(i) ``Great Lakes transaction'' means the
September 1999 transaction in which MB's
assets were transferred to Great Lakes Energy
Partners, LLC, a joint venture with Range
Resources Corporation. With respect to this
transaction, this consent decree only covers
those licenses formerly held by MB.
(j) "Order" means an order of the Enforcement
Bureau adopting this Consent Decree.
(k) "Final Order" means an Order that is no
longer subject to administrative or judicial
reconsideration, review, appeal, or stay.
IV. Agreement
7. Without admitting to any violation of the Commission's
rules, Licensees agree not to contest findings that
Licensees apparently violated Section 310(d) of the
Communications Act of 1934, as amended, and Sections
90.113 and/or 101.53 of the Commission's rules with
respect to the FirstEnergy, Spectrum, Colonial, MB,
Morrison, and Great Lakes transactions, provided that
these findings shall not be used by the Bureau against
Licensees in any other current or future proceedings
before the Bureau, except as set forth in paragraph 13 of
this Consent Decree.
8. Licensees and the Bureau agree that this Consent Decree
does not constitute an adjudication of the merits, or any
finding on the facts or law regarding any violations
committed by Licensees arising out of the FirstEnergy,
Spectrum, Colonial, MB, Morrison, and Great Lakes
transactions.
9. FirstEnergy shall make a voluntary contribution to the
United States Treasury in the amount of thirty-five
thousand dollars ($35,000) within 10 calendar days after
the Bureau releases an Order adopting this Consent
Decree.
10. Licensees agree to implement a comprehensive Compliance
Program to ensure compliance with the Communications Act
and the Commission's rules and policies. The Compliance
Program is described in a letter from Steven F. Lux,
Director, Telecommunications Engineering, FirstEnergy, to
John J. Schauble, Special Counsel, Investigations and
Hearings Division, Enforcement Bureau dated June 15,
2000, which is incorporated herein by reference.
11. Licensees agree to cause to be filed with the
Commission, within sixty days of the adoption of this
Consent Decree, all applications that are necessary to
obtain the Commission's authorization to assign all
licenses that they hold to a corporation that will be
directly owned by FirstEnergy.
12. In express reliance upon the covenants and
representations contained herein, the Bureau agrees to
terminate the investigation into the FirstEnergy,
Spectrum, Colonial, MB, Morrison, and Great Lakes
transactions upon the Order adopting this Consent Decree
becoming a Final Order.
13. In consideration for the termination of these
proceedings in accordance with the terms of this Consent
Decree, Licensees agree to the terms, conditions and
procedures contained herein.
14. The Bureau agrees not to institute any new proceeding,
formal or informal, of any kind against Licensees for
violations of Section 310(d) of the Communications Act or
Sections 90.113 and 101.53 of the Commission's rules
regarding the FirstEnergy, Spectrum, Colonial, MB,
Morrison, and Great Lakes transactions that are the
subject of this Consent Decree.
15. In the event that Licensees are found by the Commission
or its delegated authority to have engaged in conduct the
same or similar to that described in paragraph 6 of this
Consent Decree, subsequent to its adoption, Licensees and
the Bureau agree that the findings described in paragraph
6 may be used by the Bureau only to fashion an
appropriate sanction, provided that Licensees shall not
be precluded or estopped from litigating de novo any and
all of the issues arising from the facts and allegations
related to the events described herein as necessary to
defend, in any forum, their interests from challenge by
any person or entity not a party to this Consent Decree.
16. Licensees admit the jurisdiction of the Bureau to adopt
this Consent Decree.
17. Licensees waive any and all rights it may have to seek
administrative or judicial reconsideration, review,
appeal or stay, or to otherwise challenge or contest the
validity of this Consent Decree and the Order adopting
this Consent Decree, provided the Order adopts the
Consent Decree without change, addition, or modification.
18. Licensees and the Bureau agree that the effectiveness
of this Consent Decree is expressly contingent upon
issuance of the Order, provided the Order adopts the
Consent Decree without change, addition, or modification.
19. Licensees and the Bureau recognize that if any court of
competent jurisdiction renders this Consent Decree
invalid, it shall become null and void and may not be
used in any manner in any legal proceeding.
20. Licensees and the Bureau agree that if Licensees, the
Commission, or the United States on behalf of the
Commission, brings a judicial action to enforce the terms
of the Order adopting this Consent Decree, neither
Licensees nor the Commission shall contest the validity
of the Consent Decree or Order, and Licensees and the
Commission shall waive any statutory right to a trial de
novo with respect to any matter upon which the Order is
based, and shall consent to a judgment incorporating the
terms of this Consent Decree.
21. Licensees agree to waive any claims it may otherwise
have under the Equal Access to Justice Act, Title 5
U.S.C. § 504 and 47 C.F. R. § 1.1501 et seq.
22. Licensees agree that any violation of the Order
adopting this Consent Decree shall constitute a separate
violation of a Commission order, entitling the Commission
to exercise any rights and remedies attendant to the
enforcement of a Commission order.23. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATIONS COMMISSION, ENFORCEMENT BUREAU
By: _____________________
___________
David H. Solomon Date
Bureau Chief
FIRSTENERGY CORP.
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
OHIO EDISON COMPANY
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
PENNSYLVANIA POWER COMPANY
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
THE TOLEDO EDISON COMPANY
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
MB OPERATING COMPANY, INC.
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
FirstEnergy Corp., on behalf of its
now dissolved, formerly wholly-owned
subsidiary, MB Operating Company, Inc.
COLONIAL MECHANICAL CORPORATION
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
FirstEnergy Facilities Services Group, LLC,
on behalf of its wholly-owned subsidiary,
Colonial Mechanical Corporation
SPECTRUM CONTROL SYSTEMS, INC.
By: ______________________
___________
Leila L. Vespoli Date
Vice President and General Counsel
FirstEnergy Facilities Services Group, LLC,
on behalf of its wholly-owned subsidiary,
Spectrum Control Systems, Inc.